OpenSky Merchant Agreement
- Initiating Membership
- OpenSky Promotions
- Customer Service
- Shipping and Inventory
- Product Content
- Declaration of Authentic Goods
- Term and Termination
- Direct Payment Services, Fees, Refunds and Taxes
- IRS Regulations
- Returns and Transaction Disputes
- Fees and Other Amounts Payable
- Trademark and Content License Disclaimer
- Ownership of the OpenSky Platform
- Limitation of Liability
- Governing Law
- Relationship of the Parties
- Export Compliance
- Entire Agreement
Merchant acknowledges and agrees that there may be additional terms and conditions applicable to certain portions of the OpenSky Platform and certain features, content, resources or services available on or through the OpenSky Platform, and any such additional terms and conditions that Merchant accepts in the course of accessing or using any portion of the OpenSky Platform are hereby incorporated in and made a part of this Agreement.
For Merchant's use of the OpenSky Platform for purposes other than those specifically addressed in this Agreement (or any other agreement between OpenSky and Merchant, including without limitation any Standard Product Agreement, Premium Product Agreement or Extended Premium Product Agreement), Merchant acknowledges and agrees that it is bound by the terms and conditions set forth in the Terms of Service located at https://www.opensky.com/content/general/policies-terms, including, without limitation, those terms, rules, and restrictions regarding uploading, distributing, and publishing content, materials, and submissions on or through the OpenSky Platform, the licenses granted to OpenSky, OpenSky's liability limitations and warranty disclaimers, and the obligations, indemnities, and liabilities of Merchant with respect thereto. In the event of any conflict between the Terms of Service and this Agreement, the terms and conditions of this Agreement shall govern and prevail.
OpenSky's role is to create a global marketplace environment through the OpenSky Platform where buyers can discover and purchase from independent brands and Merchants.
OpenSky is building a platform to enable the most innovative independent brands to engage with consumers globally. The goal of that interaction is for consumers to discover, share, and purchase goods on the OpenSky Platform and for Merchants to have a distribution channel that enables them to reach a large and engaged audience and to build their brand in an efficient and productive manner. OpenSky is a place for Merchants to support a growing community of consumers actively interested in shopping the most dynamic independent brands.
Merchant may market, promote, sell, offer for sale, display, import, export and distribute (to the extent applicable) certain of its Products using the OpenSky Platform. A buyer enters into a transaction with a Merchant, facilitated through the OpenSky Platform, when that buyer places an order for that Merchant's goods or products featured in that Merchant's store available on the OpenSky Platform (collectively, "Products"). Please note that OpenSky can also be a merchant on the OpenSky Platform.
After placing such an order, the buyer receives a notification regarding the order, and the Merchant receives a notice in its OpenSky Merchant account. A transaction is completed upon payment from the buyer and shipment of the goods by the Merchant in accordance with this Agreement. OpenSky offers a direct payment service to facilitate a Merchant's transactions with its customers and is not a buyer of any products related to the transaction between the buyer and Merchant. OpenSky does not transfer legal ownership of Products from Merchant to buyer (though, on occasion, OpenSky is a Merchant of products on the OpenSky Platform).
Merchant represents and warrants that it has not granted any third party rights inconsistent with the foregoing, without limiting any of OpenSky's rights and remedies set forth in this Agreement, or any customer rights and remediesreferenced in this Agreement.
Application and Approval Overview. Merchant shall set up a Merchant account on the OpenSky Platform through the applicable website or application portal and fill out all applicable information. OpenSky accepts only high quality brands and Merchants onto the OpenSky Platform and reserves the right not to accept, within its sole discretion, any brands or Merchants that do not meet its standards. Furthermore, OpenSky reserves the right to remove from the OpenSky Platform any Merchant or Product(s) at our sole discretion.
Merchant acknowledges and agrees that different portions of the OpenSky Platform may be subject to different Product listing and other requirements and terms, as determined by OpenSky in its sole discretion. For example, certain marketplaces included in the OpenSky Platform may require Merchants to meet certain quality standards, may be limited to certain categories or types of Products and/or may be subject to different terms with respect to payments, transaction fees and shipping requirements.
Merchant also acknowledges and agrees that by creating an OpenSky Platform Merchant account for any applicable OpenSky-controlled marketplace, website or application, Merchant grants to OpenSky the right to list and make available for sale to buyers Merchant's Products offered through that particular marketplace, website or application through any other OpenSky-controlled marketplace, website or application as well, subject to the payment terms set forth in this Agreement (including the Fee and Payment Terms). For example, if a Merchant lists its Products on opensky.com, without any further notice to (or consent required from) Merchant, OpenSky may (in its sole discretion) choose to list any or all of those same Products on each (or all) of 55mulberry.com, pickperfect.com and dotandbo.com.
OpenSky reserves the right to implement promotions or other loyalty programs in connection with the OpenSky Platform pursuant to which customers may receive discounts earned in connection with such program(s) (collectively, "OpenSky Promotions") toward Product purchases. Unless otherwise mutually agreed upon in writing, Merchant shall have the right to determine whether it wishes to participate in the OpenSky Promotions program. To the extent Merchant opts to participate in the OpenSky Promotions program, it shall be obligated to allow discounts in conjunction with the purchase of any and all Products it offers through the OpenSky Platform. Merchant may allow a customer to apply a maximum percentage of such customer's total purchase price of a Product toward discounts via the OpenSky Promotions program. This percentage shall be selected by the Merchant via the OpenSky Platform, within a range determined by OpenSky. OpenSky reserves the right to modify the terms of the OpenSky Promotions program at any time in its sole discretion.
Merchant has the right to opt out of allowing OpenSky Promotions discounts towards the purchase of Products, or modify its maximum allowed discount at any time. However, it may take up to 24 hours for any such changes to take effect.
Generally, OpenSky will use commercially reasonable efforts to assist Merchant in facilitating its basic customer service needs. This may include (but is not limited to) assistance with questions related to order tracking, assistance with how to make carrier claims of lost or damaged shipments, assistance processing returns including provision of return shipping labels to customers and initiation of the return in the OpenSky Platform, cancellation of orders due to customer request or credit card issues and referral of any customer questions relating to a particular Merchant to that Merchant. OpenSky reserves the right to decline to assist Merchant in conjunction with certain customer service functions. Merchant acknowledges and agrees that OpenSky does not guarantee that it will answer or resolve any or all customer service inquiries, issues or disputes.
Shipping and Inventory
All sales of Products are binding. Merchant shall be solely responsible for all customer purchase order fulfillment, shipping, returns, recalls and customer service issues at Merchant's expense. Merchant shall ship the Products for orders placed through the OpenSky Platform to the address of the customer (or the customer's intended recipient) within the time periods defined in the Merchant Quality of Service Agreements. All shipments of Products shall be shipped Delivered Duty Paid to customer's designated address (or DDP, as defined in Incoterms 2010, and meaning that Merchant is responsible for delivering Products to the address of the customer or customer's intended recipient and shall pay all costs, including relevant import duties and taxes, to ship Products to their destination). Unless otherwise mutually agreed upon by the parties in writing, Merchant shall have the right to determine the shipping costs for the sales of Products, which OpenSky will collect from the customer and pass through to Merchant, less all applicable payment processing fees or other fees. To the extent a customer applies any discount toward the purchase of a Product (including any discounts obtained through the OpenSky Promotions program, to the extent applicable), such discount will be applied only to the Product itself and not the cost of shipping. For instance, if a customer buys a $100 Product that costs $10 to ship and such customer has a $20 discount, the customer will be buying the Product from the Merchant for $80 and paying the Merchant $10 for shipping, plus any applicable tax.
Merchant acknowledges and agrees that different portions of the OpenSky Platform may be subject to different shipping and inventory requirements, as communicated to Merchant by OpenSky, and Merchant is responsible for complying with all such terms and conditions that Merchant accepts in the course of accessing or using any portion of the OpenSky Platform.
Merchant shall keep OpenSky apprised, via the OpenSky Platform, of all inventory levels, inventory changes and lead times for any out of stock Products. Merchants who do not keep OpenSky apprised of inventory levels and must cancel orders as a result may be subject to further action as set forth in the OpenSky Merchant Quality of Service Agreements.
OpenSky shall have the right to accept, reject or withdraw approval of any Product in its sole and absolute discretion. Merchant shall not submit, and is not permitted to market or sell, any offensive or illegal products, Products that do not comply with OpenSky's Merchant guidelines that OpenSky has made available to Merchant, whether on its PRODUCT GUIDELINES page (which OpenSky reserves the right to update from time to time) or otherwise, or any Products that Merchant is not authorized to sell. Merchant acknowledges and agrees that OpenSky has the right in its sole discretion to take down any information and content, and block sales of any Products, at any time for any reason.
Product Sales and Descriptions.
Merchant acknowledges and agrees that it will provide clear shipping policies and ship all orders of Products or otherwise complete the transaction with a customer in accordance with the Merchant Quality of Service Agreements, except in exceptional circumstances.
Merchant acknowledges and agrees that all descriptions, photos and other information and content relating to Products shall be accurate and complete at all times. Merchant acknowledges and agrees that OpenSky may adjust Product details (e.g., titles, images, descriptions) for optimization purposes in its sole discretion, solely to the extent such changes do not impact the amount Merchant will receive in the event of a sale or change the Product being offered for sale. Any Product descriptions that do not comply with this Agreement (including without limitation OpenSky's PRODUCT GUIDELINES ) may result in suspension or termination of Merchant's account on the OpenSky Platform. Merchant acknowledges that in the event its account has been suspended or terminated, it remains obligated to pay any outstanding fees or other amounts owed to OpenSky.
Code of Conduct.
Each party acknowledges and agrees that the maintenance of the other party's brand, image, and public esteem are essential components of this Agreement. Each party agrees to hold the other party, as well as other Merchants on the OpenSky Platform, in high esteem and only promote the other party positively and in good faith. Merchant shall conduct itself at all times in such a manner as not to engage in conduct that is generally viewed by the public as offensive, reprehensible, illegal, vulgar or that otherwise impairs or diminishes or is reasonably likely to impair or diminish the reputation of OpenSky or other Merchants on the OpenSky Platform. Any such conduct by Merchant in violation of the foregoing may constitute grounds for termination.
Merchant acknowledges and agrees that any endorsement of any Product by a customer of the OpenSky Platform (including any "Insider" customers) is solely within the discretion of such customer and that OpenSky cannot and will not require any such customer to endorse or share any Product. Merchant further agrees that it will not publicize or disclose such endorsement outside of the OpenSky Platform without both OpenSky's and the endorsing customer's prior written consent. Merchant further acknowledges and agrees that while OpenSky, in its own discretion, may make commercially reasonable efforts to investigate and remove any comments which the Merchant deems fraudulent or misleading, OpenSky is not responsible for and has no control over any statements, comments or other content any customer makes in connection with a Product and Merchant releases OpenSky from all liability in connection with any damages or losses suffered by Merchant in connection with any such statements, comments or other content.
Declaration of Authentic Goods
On occasion a situation may arise where we request Merchant to confirm that the Products they are offering are authentic by submitting a Declaration of Authentic Goods. If you receive such a request, you must comply with the request by sending an email containing a signed declaration in the form provided below to the email address provided in the request.
Declaration of Authentic Goods ("Declaration"):
I declare under penalty of perjury that I have a good faith belief after reasonable inquiry that all of the Products currently or previously offered for sale on my shop at OpenSky:
- are not replicas, counterfeit items, bootlegged, illegally duplicated, pirated or otherwise unauthorized copies; and
- do not violate or infringe upon any third-party intellectual property, or other rights or interest of any nature whatsoever.
I declare under penalty of perjury that I have a good faith belief that:
- I have all necessary rights to display, sell, offer for sale and ship Products in my shop on OpenSky;
- operating my shop on OpenSky does not conflict with any other agreement to which I am bound; and
- I have obtained any required license to operate my shop on OpenSky and that any such licenses are in full force and effect.
I will accept service of process from any party who contacts OpenSky alleging that my shop is infringing its intellectual property or other right or violating an agreement with such party (a "Complaining Party"). I consent to the release to such Complaining Party of all information in this Declaration and related communications. For any disputes with such Complaining Party, I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located, or if my address is outside of the United States, for any judicial district that can exercise jurisdiction.
Failure to comply with a request to provide a Declaration of Authentic Goods statement within 10 business days may result in suspension or termination of Merchant's account on the OpenSky Platform and/or mandatory acceptance of any Product returns and payment of corresponding refunds until Merchant submits a Declaration of Authentic Goods statement, notwithstanding any contrary terms in the Merchant's refunds and exchanges policies or this Agreement.
Merchant agrees not to engage in shilling, which is generally defined as the use of an alternate account to fraudulently impact any aspect of Merchant's reputation (including without limitation pricing, sales and review data). OpenSky reserves the right to remove from the OpenSky Platform any Merchant or product(s) which are believed to have been compromised by the practice of shilling at its sole discretion.
Term and Termination
This Agreement shall commence on the date Merchant accepts the terms and conditions of this Agreement (the "Effective Date") and shall continue thereafter unless either party terminates this Agreement in accordance with its terms.
Either party may terminate this Agreement for convenience immediately upon written notice. Upon any termination or expiration of this Agreement, Merchant shall promptly fulfill any outstanding orders for Products upon OpenSky's written request. For avoidance of doubt, termination of this Agreement or any order for any reason will not affect the obligations of Merchant with respect to returns, warranty, recalls or customer service. The following Sections of this Agreement shall survive any expiration or termination of this Agreement or an applicable order for Products: Termination (subsection of Term and Termination), Direct Payment Services, Fees, Refunds and Taxes, Deposits, Recoupment, IRS Regulations, Taxes, Returns and Transaction Disputes, Disclaimer, Ownership of the OpenSky Platform, Indemnification, Insurance (for the period stated therein), Limitation of Liability, Confidentiality, Severability, Governing Law, Waiver, Relationship of the Parties and Entire Agreement.
If Merchant's payment is not received by on the applicable billing date of any invoice provided by OpenSky, OpenSky may (in its sole discretion) automatically revoke such Merchant's access to its account and/or the OpenSky Platform (in whole or in part). OpenSky reserves the right to withhold any monies owed by OpenSky to Merchant, at its discretion, to cover any outstanding amounts owed by Merchant to OpenSky. OpenSky may or may not (in its sole discretion) contact Merchant directly to notify Merchant of unpaid amounts due.
Direct Payment Services, Fees, Refunds and Taxes
Direct Payment Services.
After Merchant has registered an account on the OpenSky Platform and has been approved by OpenSky according to the criteria set forth above, OpenSky will accept payment on behalf of Merchant (the "direct payment service"). OpenSky accepts all major credit cards on behalf of Merchant. Merchant acknowledges and agrees that the direct payment service is offered solely to facilitate Merchant's transactions with its customers. Merchant further acknowledges and agrees that:
- The transaction between OpenSky and Merchant is for payment only. OpenSky is not the buyer of any Products.
- The direct payment service can be discontinued by OpenSky at any time.
- OpenSky reserves the right to place limits on transactions between all or some buyers and Merchant if OpenSky suspects fraud. Such limitations may be in the form of number of transactions or value of items. OpenSky shall not be liable to Merchant if OpenSky opts not to proceed with a transaction based on the foregoing limitations.
- OpenSky reserves the right to refuse the direct payment service to Merchant or any of its customers at any time for any reason.
- OpenSky reserves the right to terminate Merchant if OpenSky has reason to believe (in its sole discretion) that Merchant is using the direct payment service to transfer funds not related to the sale of Products.
- OpenSky may decline transactions that OpenSky believes, in its sole discretion, pose a high risk of fraud.
- OpenSky does not pass any financial data such as credit card information regarding Merchant's buyers or other end users of the OpenSky Platform to Merchant. Merchant will receive necessary buyer information required to complete the order including name and mailing address.
- Merchant authorizes OpenSky to verify information regarding Merchant's account (including the authenticity thereof) using credit reports or other means.
- Merchant shall resolve all disputes with buyer as set forth below in the Returns and Transactions Disputes section.
Current Information Required from Merchant to Receive Payment.
MERCHANT MUST PROVIDE OPENSKY WITH CURRENT, COMPLETE AND ACCURATE BILLING INFORMATION (INCLUDING WITHOUT LIMITATION, BILLING ADDRESS, E-MAIL ADDRESS, WEBSITE URL, CREDIT CARD NUMBER, CREDIT CARD EXPIRATION DATE AND CREDIT CARD SECURITY CODE, IF APPLICABLE). MERCHANT MUST PROMPTLY UPDATE ALL BILLING INFORMATION WITH OPENSKY SO THAT IT REMAINS CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, E-MAIL ADDRESS, WEBSITE URL, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND MERCHANT MUST PROMPTLY NOTIFY OPENSKY IF MERCHANT'S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF MERCHANT BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF MERCHANT'S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE FROM MERCHANT DASHBOARD. IF MERCHANT FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, MERCHANT AGREES THAT OPENSKY MAY CONTINUE CHARGING MERCHANT AS SET FORTH IN THIS AGREEMENT DURING THE TERM.
Once Merchant provides a tracking number which has been scanned by the shipping carrier for a Product, OpenSky will consider the corresponding sale for the Product complete. Merchant's proceeds from the sale will show in Merchant's account (subject to Merchant's payment of any applicable amounts payable to OpenSky, as further described herein). Merchant acknowledges that any and all refunds, adjustments, discounts or other amounts that would result in a deduction in connection with any Products sold shall be applied against any corresponding payment made to Merchant. Merchant further acknowledges and agrees to the following.
- OpenSky can only deposit funds into checking accounts located in the United States.
- OpenSky will initiate transfers for payments to Merchant relating to completed sales and shipments of Products twice per calendar month: (i) on the last day of each calendar month for sales completed from the 1st through the 15th of such calendar month; and (ii) on the 15th day of each calendar month for sales completed from the 16th through the last day of the preceding calendar month. If the 15th or last day of an applicable calendar month falls on a non-business day or OpenSky observed holiday, any outstanding transfers may be initiated on the next business day. Please note that once the transfer is initiated it may take 3-5 days for the funds to become available to Merchant.
- OpenSky reserves the right to hold or delay funds based on reasonable information available if OpenSky believes that a transaction may result in a return, dispute, chargeback or other claim. Such determination shall be made at OpenSky's sole discretion, however, any hold or delay of funds will not last longer than 90 days before a resolution will be given. OpenSky will notify Merchant via email if a hold occurs. OpenSky shall not be liable to Merchant for any acts or omissions in accordance with the foregoing.
- Merchant must provide complete and accurate bank account information, and will update such information so that it remains current and accurate at all times during the term of the Agreement.
- Funds that cannot be deposited into Merchant's bank account due to incorrect bank information will be held by OpenSky until Merchant provides updated and accurate information.
OpenSky, as the sole entity collecting funds on behalf of Merchant, reserves the right to seek reimbursement from Merchant if OpenSky issues a refund, at its sole discretion, receives a chargeback or finds errors related to duplicate payments or duplicate transactions for which Merchant was paid. Merchant may also be subject to an additional processing fee of $20 for each chargeback that is received. OpenSky reserves the right to seek reimbursement through deduction of future payments, charging Merchant's credit card account or other means necessary, including retaining a reserve of Merchant's funds earned through the OpenSky Platform or pursuing debt collections. Merchant hereby authorizes such means of collection should they become necessary.
Internal Revenue Service regulations require that any U.S. third-party payment settlement entities, including OpenSky, file Form 1099-K to report gross sales for Merchants that meet both of the following in a calendar year (reporting):
- the gross amount of the total reportable payment transactions exceeds $20,000; and
- the total number of such transactions exceeds 200.
As a result of these regulations, OpenSky requires Merchant to provide accurate tax ID information and verification of the foregoing information regardless of Merchant's sales volume on the OpenSky Platform. Accordingly, Merchant acknowledges and agrees that it will provide all applicable tax ID information upon notification from OpenSky.
Returns and Transaction Disputes
All Product returns shall be shipped from the applicable customer to Merchant directly. Merchant shall cooperate with OpenSky and provide all reasonably requested information to facilitate the Product return process, including making return shipping labels available to customers through the OpenSky Platform, at Merchant's expense. If Product is not returned to Merchant in resalable condition (e.g., unused, unwashed and undamaged), Merchant must contact OpenSky customer service as soon as possible, and provide any further information requested by OpenSky, such as photographs and other information to help resolve the matter. OpenSky will determine in its sole discretion whether the returned Product is in resalable condition.
Merchant must allow customers to initiate the aforementioned Product returns for any reason within 14 calendar days from shipment delivery date and accept such returns in accordance with the terms herein, unless such Product meets the following specified exemptions, at OpenSky's sole discretion. These exemptions include (i) customized, personalized or made-to-order Products ("Custom Products") (ii) clearance Products that have been discounted and whose inventory will not be replenished and (iii) Products listed or reasonably fall in the following categories: books, electronic media, beauty products (excluding electronics), mattresses, undergarments and perishable items. For clarity, these exemptions shall not apply to Products that are delivered different than described, damaged or late (as further detailed below and in the Return and Transaction Disputes section of the OpenSky Merchant Quality of Service Agreements). Merchant shall be solely responsible for and shall hold OpenSky and its customers harmless from, all costs and expenses associated with Product returns, and for handling all returns and customer service requests relating to the Products at its expense.
Merchant Canceling an Order.
If Merchant cannot fulfill an order due to extraordinary circumstances or otherwise, Merchant cancel the order as soon as possible using the provided option on the OpenSky Platform or by contacting the OpenSky Merchant help team from https://www.opensky.com/content/contact-us. Orders cannot be cancelled in connection with any fee avoidance.
If Merchant cancels what OpenSky deems an unreasonable number of orders, at the sole discretion of OpenSky, Merchant's account may be suspended and reviewed by OpenSky. Penalties for each merchant-initiated cancellation may also be assessed as defined in the OpenSky Merchant Quality of Service Agreements.
Buyer Cancelling an Order.
Merchant acknowledges and agrees that any buyer of a Product will be allowed to cancel an order as long as such order has not shipped. OpenSky will promptly notify Merchant of any buyer-initiated cancelled orders through email and through Merchant's OpenSky account on the OpenSky Platform.
In the case that Merchant's customer receives Products from Merchant or its agents that are damaged upon arrival, such customer will have 14 calendar days from shipment date of the Product to initiate a return for the damaged Product to Merchant.
Products Not Received.
On occasion a situation may arise where Merchant shipped a Product but the corresponding buyer did not receive such Product. In these situations, OpenSky may require Merchant to provide further information such as proof of shipping or proof of delivery to help resolve the dispute. OpenSky reserves the right to issue a buyer of a Product a refund and adjust Merchant's account accordingly. Merchants that do not respond to OpenSky's requests to provide information in furtherance of resolving a dispute may have their accounts suspended or terminated from the OpenSky Platform. Merchant acknowledges that in the event its account has been suspended or terminated, it remains obligated to pay any outstanding amounts owed to OpenSky.
Product is Different than Description.
On occasion a situation may arise where a buyer purchases a Product but receives a product that is different than the Product described on the OpenSky Platform. In these situations, OpenSky may require both Merchant and buyer to provide further information such as photographs and other information to help resolve the dispute. Upon review of such information, OpenSky reserves the right to issue a buyer a refund and adjust Merchant's account accordingly. Merchants who do not respond to OpenSky's requests to provide information in furtherance of resolving a dispute may have their accounts suspended or terminated from the OpenSky Platform. Merchant acknowledges that in the event its account has been suspended or terminated, it remains obligated to pay any outstanding amounts owed to OpenSky.
Failing to comply with any items in this agreement may also result in fees and penalties as defined in the OpenSky Merchant Quality of Service Agreements.
Fees and Other Amounts Payable
Merchant shall pay certain amounts to OpenSky, and OpenSky shall remit certain amounts to Merchant, as set forth in the Fee and Payment Terms, OpenSky Terms of Membership Policy and Boost Agreement, each of which OpenSky reserves the right to update from time to time in its sole discretion upon notice to Merchant, and/or any other written agreement between the parties.
Except as expressly set forth in this Agreement, all amounts payable by Merchant to OpenSky are nonrefundable, regardless of whether any order of Products is subsequently canceled or returned.
In order to set up a Merchant account, Merchant will be required to sign up for a paid listing plan on a subscription basis ("Membership Plans") unless otherwise noted. Details and terms for such Membership Plans are set forth in OpenSky's OPENSKY TERMS OF MEMBERSHIP POLICY.
Merchant may not engage in any activity to avoid any fees incurred or other amounts owed to OpenSky by Merchant hereunder ("fee avoidance"). Fee avoidance includes but is not limited to: completing a transaction through means other than the OpenSky Platform once such transaction has been initiated on the OpenSky Platform, pricing Products below its intended purchase price, charging excessive shipping fees or otherwise altering a Product to avoid any fees hereunder or diverting purchases to another source.
OpenSky may collect applicable taxes on Merchant's behalf (so long as Merchant indicates that it would like OpenSky to do so), however, Merchant shall be ultimately responsible for paying any and all taxes applicable to any purchases or sales of Products, including without limitation all applicable sales, VAT, use or other taxes, duties or governmental assessments (excluding any taxes on OpenSky's net income).
Merchant represents and warrants to OpenSky, OpenSky's members and OpenSky's customers that all Products furnished hereunder: (a) are free from defects in design, materials and workmanship; (b) are of merchantable quality; (c) conform strictly, to any applicable Specifications (defined below) therefore; (d) are fit and sufficient for their intended purposes; (e) do not contain any viruses, Trojan horses, worms, time bombs, malware, or other harmful code or instructions; and (f) are being furnished by Merchant to the applicable customer, with clear and marketable title to the Products, free from all liens, claims and encumbrances. Merchant further represents and warrants that: (i) all Products and any other services, content or materials provided hereunder by or for Merchant comply with all applicable domestic and, to the extent applicable, international laws, rules and regulations, and labeling and disclosure requirements, and do not violate or infringe upon any third party intellectual property or other rights or interest of any nature whatsoever; (ii) Merchant has all necessary rights to display, sell, offer for sale and ship Products in Merchant's store on the OpenSky Platform, (iii) nothing in this Agreement conflicts with any other agreement to which Merchant is bound, (iv) Merchant shall comply with all applicable laws, rules and regulations in the course of performing its obligations under this Agreement, including without limitation FTC mail order rules, and (v) if Merchant's performance of its obligations under this Agreement requires a license, Merchant has obtained that license and the license is in full force and effect. For purposes hereof, "Specifications" means any and all specifications, drawings, samples, models, diagrams, descriptions, bulletins, engineering sheets or other materials relating to the Products provided by Merchant, and any other requirements permitted for customized Products. Products repaired or replaced by Merchant shall be subject to all of the provisions of this Agreement and the order in the manner and to the same extent as Products originally furnished hereunder. These warranties shall survive acceptance, inspection, delivery and payment and shall inure to the benefit of OpenSky, its successors, assigns, customers and users of Products. Nothing herein shall limit any other warranties, express or implied, available to OpenSky or the applicable customer under applicable law.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE SET FORTH IN THIS WARRANTIES SECTION, AND EXCEPT FOR WARRANTIES MADE BY MERCHANT TO CUSTOMERS, EACH PARTY HEREBY DISCLAIMS (FOR ITSELF AND ITS OTHER SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IN ADDITION, OPENSKY DOES NOT WARRANT OR GUARANTEE ANY RESULTS OF USE, THAT THE OPENSKY PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ITS SERVICES OFFERED ON OR THROUGH THE OPENSKY PLATFORM SHALL RESULT IN ANY SALES OR PROFIT FOR MERCHANT.
Trademark and Content License Disclaimer
Merchant grants OpenSky, the rights and licenses (without obligation) worldwide to use, copy, distribute, display, and exploit Merchant's trademarks, name, nickname, logos, initials, and if applicable, voice, biography, likeness, and images ("Mark(s)") and content provided or made available by Merchant associated with the OpenSky Platform, the Products, Products' documentation, Products graphics, artwork, and other marketing materials, for the purposes of marketing and promoting the Products, and identifying Merchant as an OpenSky Merchant, in any media or formats including, without limitation, the OpenSky Platform, any news or comment feeds associated with the OpenSky Platform, Insider pages, marketing communications (including OpenSky's and third parties' e-mails), banner advertisements, affiliate programs, comparison shopping engines, private label sites of OpenSky and its partners. Merchant will be responsible for obtaining all third party rights required to permit OpenSky to have the rights set forth above.
Ownership of the OpenSky Platform
As between the parties, OpenSky owns all right, title and interest (including patent rights, copyright rights, trade secret rights, trademark rights, database rights and all other rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, artistry, designations, designs, know how, ideas, programs, events and information in connection with the OpenSky Platform and related technology, the OpenSky business and services, and any of OpenSky's proprietary information or content that is otherwise created by OpenSky, including modifications, upgrades, new versions, designs, audio, video, and data developed by or on behalf of OpenSky (collectively, "OpenSky Materials"). No rights or licenses are granted to the OpenSky Materials other than as expressly set forth in this Agreement.
As part of its services hereunder, OpenSky operates a syndication program, whereby OpenSky permits its syndication partners to display, promote, offer for sale, sell and distribute OpenSky Merchants' products on such syndication partners' commerce platform (the "Syndication Program"). By accepting the terms and conditions of this Agreement, Merchant hereby consents to have its Products featured and offered for sale in the Syndication Program. Certain of the terms regarding the Syndication Program may differ from being a Merchant on OpenSky.
Merchant shall indemnify, defend, and hold harmless OpenSky, its subsidiaries and affiliated companies, their successors, assigns, Merchants, publishers, curators, Insiders, employees, customers and users of Products provided hereunder, against all damages, expenses, liabilities, claims, suits, demands, costs, attorneys' fees or losses of every kind, arising out of or alleged to have arisen out of or in connection with (i) accidents, occurrences, injuries or losses to or of any person or property, due to or resulting from the Products or Merchant's negligence; (ii) the design, preparation, manufacture, construction, assembly, completion, packaging, shipping or delivery or non-delivery within Merchant's control, use, sale or distribution (other than by OpenSky), and/or recall of Products, (iii) Merchant's performance or lack of performance of its obligations under this Agreement or an applicable order for Products; (iv) Merchant's breach of any representation, warranty or obligation hereunder; (v) Merchant's actual or threatened violation of any law, rule or regulation of any governmental authority or agency (including, but not limited to, any law relating to contamination by, or the actual or threatened release of, any hazardous or toxic substance, waste or pollutant); or (vi) infringement, misappropriation or violation of any third party right by Merchant or the Products. These indemnification obligations shall apply to any and all claims, actual or asserted, by any person or entity, including without limitation, first party claims asserted by OpenSky against Merchant. The provisions of this section shall survive the acceptance of and payment for the Products hereunder and any termination or expiration of an order for Products or this Agreement. This indemnity will not be limited in any manner whatsoever by insurance coverage maintained by Merchant.
Without limiting any of Merchant's obligations in the Indemnification Section or otherwise, Merchant shall carry product liability insurance in an amount that meets or exceeds industry-standards for Merchant's sales of Products and other activities on the OpenSky Platform throughout the term of this Agreement and for 3 years thereafter and shall ensure that such insurance covers OpenSky, its members, curators, Insiders and its customers with respect to any and all products or services it supplies to OpenSky. Merchant shall ensure that such policies shall apply as primary insurance without any right of contribution by any insurance that may be carried by OpenSky. Upon OpenSky's request from time to time, Merchant shall provide certificates of insurance or other evidence of compliance with the foregoing to OpenSky's reasonable satisfaction. Merchant shall provide OpenSky with at least 30 days' advance written notice of any cancellation or reduction in coverage.
Limitation of Liability
EXCEPT AS SET FORTH BELOW IN THIS SECTION, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT WILL THE LIABILITY OF EITHER PARTY TO THE OTHER EXCEED THE AMOUNTS PAID BY OPENSKY TO MERCHANT IN THE 12-MONTH PERIOD PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS ON LIABILITY DO NOT APPLY TO A PARTY'S INDEMNITY OBLIGATIONS REFERENCED IN THIS AGREEMENT, CONFIDENTIALITY OBLIGATIONS HEREIN OR FOR LIABILITY CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
MERCHANT ACKNOWLEDGES AND AGREES THAT OPENSKY HAS NO OBLIGATION TO BECOME INVOLVED IN, OR ACCEPT LIABILITY FOR DISPUTES BETWEEN MERCHANT AND ANY CUSTOMER. MERCHANT HEREBY AGREES TO RELEASE OPENSKY (AND ITS OFFICERS, DIRECTORS, AGENTS, AFFILIATES, SUBSIDIARIES, SUCCESSORS, INSURERS, INVESTORS, AND EMPLOYEES), FROM ALL ACTIONS, SUITS, CLAIMS, DAMAGES (ACTUAL AND CONSEQUENTIAL), JUDGMENTS, LEVIES, EXECUTIONS, LIABILITIES, LOSSES, EXPENSES, AND OTHER COSTS, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, ACTUAL OR CONTINGENT, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES, IN ANY WAY CONNECTED WITH MERCHANT'S DEALINGS AND DISPUTES WITH ONE OR MORE CUSTOMERS. MERCHANT WAIVES ALL CODE PROVISIONS THAT SUBSTANTIALLY PROVIDE: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
If any provision (or portion thereof) of this Agreement is found to be invalid or unenforceable, such provision (or portion thereof) will be limited or replaced to the minimum extent necessary so that such provision will be interpreted so as to best reflect the original intent of the parties, and the balance of this Agreement shall remain in full force and effect.
This Agreement shall be governed by and construed under the laws of the State of New York and the United States without regard to conflicts of law provisions thereof. The United Nations Conventions on Contracts for the International Sale of Goods shall not be applicable hereto. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in New York County, New York, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, New York County, New York, or the Southern District of New York. The prevailing party in any action or proceeding arising out of this Agreement will be entitled to an award of costs and attorneys' fees.
Neither party shall be deemed to have waived any provision hereof, or any breach by the other party of any provision hereof, unless such waiver is specifically set forth in writing and executed by an authorized agent of such party, nor shall any waiver constitute a waiver of such provision on any other occasion or a waiver of any other breach by the other party.
Relationship of the Parties
For all purposes of this Agreement and each order for Products, each party shall be and act as an independent contractor and not as a partner, employee, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. Merchant is acting as an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations properly attributable to Merchant, including, but not limited to, appropriate Workers' Compensation Insurance; and Merchant agrees to defend, indemnify and hold OpenSky harmless from any and all claims, damages, liability, attorneys' fees and expenses on account of an alleged failure by Merchant to satisfy any such obligations.
Merchant's right to access and use the OpenSky Platform, and its rights and obligations under this Agreement and/or any order for Products, may not be assigned or transferred to any person or entity without OpenSky's prior written consent. OpenSky may, without consent, assign and transfer this Agreement and any applicable order for Products to a successor to all or substantially all of its business or assets to which this Agreement relates.
Merchant shall comply with all applicable export laws, rules, and regulations, including without limitation those of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Products in violation of any such restrictions, laws or regulations. The parties shall cooperate to obtain any necessary licenses or exemptions with respect to the export from the U.S. of all Products to any location and shall, at OpenSky's request, demonstrate compliance with all applicable laws and regulations prior to any shipment or delivery by Merchant.
Except as otherwise stated herein, OpenSky shall have the right to modify this Agreement in its sole discretion upon 30 days' notice to Merchant.
Any order placed hereunder and the shipment of any ordered Products are subject to the unqualified acceptance of this Agreement by Merchant. The terms and conditions set forth in this Agreement are the complete and exclusive agreement between OpenSky and Merchant, and supersede all prior or contemporaneous oral or written understandings or negotiations, and all past dealing or industry custom, with respect to the subject matter hereof. If Merchant's order acknowledgement, invoice, or other communication to OpenSky that is not signed by both parties contains provisions that are inconsistent with or in addition to those contained in this Agreement, this Agreement shall prevail, and OpenSky hereby notifies Merchant of its rejection of and objection to such inconsistent terms.
Updated: May 1, 2017